General Terms and conditions of sale of GOVECS AG
1. General, Scope of Application
1.1 These General Terms and Conditions of Sale ("Terms and Conditions") shall apply to all business relations of GOVECS AG with its registered seat in Munich, Germany ("GOVECS" or “we”) with its customers ("Buyer(s)"). They shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 These Terms and Conditions shall apply in particular to contracts for the sale and/or delivery of movable Goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 German Civil Code (BGB)). Unless otherwise agreed, these Terms and Conditions shall apply in the version valid at the time of the Buyer's order or, in any case, in the version last notified to the Buyer in text form as a framework agreement also for similar future contracts without our having to refer to them again in each individual case.
1.3 Our Terms and Conditions shall apply exclusively; any terms and conditions of the Buyer that conflict with or deviate from our Terms and Conditions shall not apply unless we have expressly consented to their application in writing in an individual case. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's terms and conditions.
2. Offer, Offer Documents
2.1 Unless they are expressly marked as binding or contain a specific acceptance period, our offers are subject to change and non-binding, even if they contain specifications or other project-related documents from us. The order of the Goods by the Buyer is considered a binding offer of contract, which we can accept within five (5) working days.
2.2 Acceptance by us may be declared either in writing or by delivery of the Goods to the Buyer.
2.3 The legal relationship between GOVECS and the Buyer shall be governed solely by the written contract, including these Terms and Conditions. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Oral promises made by GOVECS prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
2.4 Additions and amendments to the agreements made, including these Terms and Conditions, must be made in writing to be effective.
2.5 To comply with the written form, the following shall be sufficient, (i) a transmission by telecommunication, in particular by fax or by e-mail, provided that a copy of the signed declaration is transmitted or (ii) a transmission via our digital offer tool.
2.6 Information provided by us on the subject of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances, and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
2.7 We reserve our ownership and copyrights to illustrations, drawings, calculations and other product-, application- or project-related documents that contain know-how worthy of protection, in particular also to documents that are marked as confidential, even if we provide them to the Buyer. They may neither be reproduced nor made accessible to third parties without our express prior written consent.
3. Prices, Terms of Payment, Default
3.1 Unless otherwise agreed, our prices are in EUR and "ex works" (lncoterms 2020), excluding packaging, transport costs, customs clearance, and insurance. These will be invoiced separately if the Buyer wishes the Goods to be shipped or otherwise covered by transport insurance.
3.2 Unless otherwise agreed in individual cases, thirty (30) percent of the sales price shall be paid to us in advance, i.e. when the order is placed, and seventy (70) percent after completion and corresponding invoicing before the Goods are shipped.
3.3 The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
3.4 We reserve the right to change our prices appropriately if, after conclusion of the contract, cost reductions or cost increases occur for which we are not responsible (e.g. due to collective wage agreements). We will provide evidence of these to the Buyer on request. If the Buyer does not agree with the price change, he shall have the right to withdraw from the contract within fourteen (14) days from receipt of the price change declaration.
3.5 Unless otherwise agreed, the purchase price shall be due for payment without deduction within seven (7) days of receipt of the invoice. The deduction of a discount requires a separate, express, and written agreement.
3.6 We are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation that goes beyond Section 3.2 at the latest with the order confirmation.
3.7 The Buyer can only offset if his counterclaims are legally established, undisputed, or recognized by us.
3.8 Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 German Commercial Code (HGB)) shall remain unaffected.
4. Delivery, Delivery Time, Default of Acceptance
4.1 Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
4.2 If we are unable to meet a delivery deadline (non-availability of the service), we will inform the Buyer of this immediately and at the same time inform him of the expected new delivery deadline.
4.3 If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time.
4.4 If the failure to meet a delivery deadline is due to an event of force majeure, i.e. an unforeseen event over which we have no control and for which we are not responsible (e.g. official measures or orders, pandemics, fire, floods, storms, explosions or other natural disasters, mobilizations, wars, riots, labor disputes, including strikes and lockouts), the delivery deadline shall be extended by the duration of the delay plus a start-up period of a further two (2) weeks. This shall also apply if an event of force majeure occurs at one of our upstream suppliers and, for this reason, there is a delay in delivery from us.
4.5 Delivery times may also be extended in particular if technical issues that arise have not yet been conclusively clarified. Furthermore, compliance with an agreed delivery date or the agreed period for performance by us shall require the timely and proper fulfillment of the existing obligations of the Buyer, in particular compliance with the agreed terms of payment and the fulfillment of any agreed obligations to cooperate. We reserve the right to plead non-performance of the contract.
4.6 If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages is limited in accordance with Section 7.
4.7 We shall only be entitled to make partial deliveries if (i) the partial delivery is usable for the Buyer within the scope of the contractual intended purpose, and (ii) the delivery of the remaining ordered Goods is ensured and (iii) the Buyer does not incur any significant additional expenses or costs as a result (unless we agree to bear such costs).
4.8 If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to rescind the contract (§ 321 German Civil Code (BGB)).
4.9 If the Buyer is in default of acceptance (Annahmeverzug), we shall be entitled to demand from the Buyer the costs incurred by the storage of the Goods affected by the default of acceptance. In the event of storage by us, the storage costs shall amount to 0.25 percent of the invoice amount of the delivery items to be stored per expired week. The parties shall be entitled to prove that higher, lower or no storage costs were incurred. The statutory rights to withdraw from the contract and to claim damages shall remain unaffected.
5. Transfer of Risk
5.1 The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest upon handover.
5.2 However, in the case of sale by delivery to a place other than the place of performance (Versendungskauf), the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall pass already upon delivery of the Goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
5.3 The handover or acceptance is equal if the Buyer is in default of acceptance (Annahmeverzug).
6. Liability for Defects
6.1 The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery (Falschlieferung) and short delivery (Minderlieferung) as well as improper assembly or defective assembly instructions), unless otherwise stipulated below.
6.2 Claims for defects of the Buyer presuppose that the Buyer has duly fulfilled his obligations to inspect the Goods and to give notice of defects in accordance with § 377 German Commercial Code (HGB). If the Buyer does not comply with his obligation to inspect and give notice of defects without undue delay, he shall lose his warranty claims. The Goods shall be inspected carefully immediately after delivery to the Buyer or to the third party designated by him. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful inspection, the Goods shall be deemed to have been approved by the Buyer if we do not receive a written notice of defect within five (5) working days after delivery. With regard to other defects, the Goods shall be deemed to have been accepted by the Buyer if the notice of defect is not received by us within five (5) working days after the time when the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect. At the request of GOVECS, Goods subject to complaint shall be returned to GOVECS freight prepaid. In the event of a justified complaint, GOVECS shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the Goods are located at a place other than the place of intended use.
6.3 Claims for defects of the Buyer presuppose that he follows the instructions of the manual belonging to the Goods, in particular that he complies with specified inspections and handles the Goods in accordance with the information provided by GOVECS.
6.4 Insofar as there is a defect in the purchased item within the meaning of § 434 of the German Civil Code (BGB), we shall be entitled, at our discretion, to subsequent performance (Nacherfüllung) in the form of rectification (Mangelbeseitigung) of the defect or delivery of a new item free of defects.
6.5 We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
6.6 The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the Goods complained about for inspection purposes. In the event of a delivery of a new item free of defects, the Buyer shall return the defective item to us in accordance with the statutory provisions.
6.7 Claims for defects shall not exist in the event of natural wear and tear or damage caused by the Buyer or third parties to whom the Buyer entrusts the Goods, which occur after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials or due to special external influences which are not assumed under the contract. If modifications or improper repair work are carried out by the Buyer or by third parties, there shall also be no claims for defects for these and the resulting consequences.
6.8 If the supplementary performance according to § 440 sentence 2 German Civil Code (BGB) fails, the Buyer shall be entitled to choose between withdrawal from the contract or reduction of the purchase price. In the event of an insignificant defect, there shall be no right of withdrawal.
6.9 Unless otherwise agreed, the limitation period for claims for defects shall be twelve (12) months from the transfer of risk. The above limitation periods under the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect in the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code (BGB)) would lead to a shorter limitation period in individual cases. However, claims for damages by the Buyer under the Product Liability Act (Produkthaftungsgesetz) or due to defects intentionally caused by us shall become time-barred exclusively in accordance with the statutory limitation periods.
6.10 In case of defects of components of other manufacturers, which GOVECS cannot remedy for licensing or factual reasons, GOVECS shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Buyer or assign them to the Buyer. Warranty claims against GOVECS shall exist in case of such defects under the other conditions and in accordance with these Terms and Conditions only if the legal enforcement of the aforementioned claims against the manufacturer and suppliers was unsuccessful or is futile, e.g. due to insolvency. During the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Buyer against GOVECS shall be suspended.
6.11 We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
6.12 Claims of the Buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with Section 7 and shall otherwise be excluded.
6.13 Any delivery of used items agreed with the Buyer in individual cases shall be made to the exclusion of any warranty for material defects.
6.14 The elimination of a defect does not restart the warranty period from the beginning.
6.15 GOVECS reserves the right to enter into separate manufacturer's warranty terms with the Buyer.
7. Other Liability
7.1 Insofar as nothing to the contrary arises from these Terms and Conditions, including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
7.2 We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of intent (Vorsatz)and gross negligence (grobe Fahrlässigkeit). In the case of simple negligence (einfacher Fahrlässigkeit), we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs (Sorgfalt in eigenen Angelegenheiten); insignificant breach of duty), only
7.2.1 for damages resulting from injury to life, body, or health,
7.2.2 for damages resulting from the breach of an essential contractual obligation (wesentliche Vertragspflicht; obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely).
7.3 In the case of simple negligence (ein-facher Fahrlässigkeit), we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs (Sorgfalt in eigenen Angelegenheiten); insignificant breach of duty), only
7.3.1 for damages resulting from inju-ry to life, body, or health; and
7.3.2 for damages resulting from the breach of an essential contrac-tual obligation (wesentliche Ver-tragspflicht; obligation, the ful-fillment of which enables the proper execution of the contract in the first place and on the compliance with which the con-tractual partner regularly relies and may rely).
7.4 7.4 Insofar as we are liable for damages on the merits pursuant to Section 7.3.2 , this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen by exercising due care.
7.5 7.5 Except in cases of Sections 7.2 and 7.3 our liability for indirect and consequential damages is excluded. Damage to prop-erty and further financial losses resulting therefrom shall be limited to an amount of EUR 500,000.00 per case of damage in the event of simple negligence (serial damage shall be deemed to be one case of damage), even if a breach of essential contractual obligations is involved.
7.6 The limitations of liability resulting from Sections 7.3 through and including 7.5 shall not apply insofar as we have fraud-ulently concealed a defect or have as-sumed a guarantee for the quality of the Goods and for claims of the Buyer under the Product Liability Act.
7.7 Due to a breach of duty which does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 650, 648 German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
7.8 Insofar as we provide technical infor-mation or act in an advisory capacity and such information or advice is not part of the contractually agreed scope of ser-vices owed by us, this shall be done free of charge and to the exclusion of any lia-bility.
7. Insofar as our liability for damages is excluded or limited, this shall also apply with regard to persons for whose fault we are responsible in accordance with statu-tory provisions, as well as for the per-sonal liability for damages of our em-ployees, representatives and vicarious agents.
8. Retention of Title
8.1 Until full payment of all present and future claims of GOVECS arising from the contract and an ongoing business relationship (secured claims), GOVECS retains title to the Goods sold (hereinafter "Retention of Title" or "Retained Goods").
8.2 The Buyer is obligated to treat the Retained Goods with care; in particular, he is obligated to sufficiently insure them at his own expense against fire, water, and theft damage at replacement value. Insofar as maintenance and inspection work is required, the Buyer must carry this out in good time at its own expense.
8.3 The Retained Goods may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must inform us immediately in writing if an application is made to open insolvency proceedings or insofar as access by third parties (e.g. seizures, attachments or other dispositions or interventions by third parties) is made to the Retained Goods.
8.4 In case of breach of contract by the Buyer, in particular in case of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the Retained Goods on the basis of the reservation of title. The demand for surrender does not at the same time contain the declaration of withdrawal; we are rather entitled to demand only the surrender of the Retained Goods and to reserve the right of withdrawal. If the Buyer does not pay the due purchase price, GOVECS may only assert these rights if we have previously set him a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
8.5 Until revoked by us in accordance with Section 8.5.3 below, the Buyer shall be authorized to resell and/or process the Goods subject to Retention of Title in the ordinary course of business. In this case, the following provisions shall apply in addition:
8.5.1 The Retention of Title shall extend to the products resulting from the processing, mixing or combining of our Goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing, or combining with Goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined Goods. Otherwise, the same shall apply to the resulting product as to the Goods delivered under Retention of Title.
8.5.2 The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the Goods or the product in total or in the amount of any co-ownership share of GOVECS in accordance with the above Section 8.5.1. We hereby accept the assignment. The Buyer's obligations set forth in Section 8.2 shall also apply with regard to the assigned claims.
8.5.3 The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the Retention of Title by exercising a right pursuant to Section 8.4. If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the Buyer's authorization to further sell and process the Goods subject to Retention of Title.
8.6 If the realizable value of the securities exceeds our claims by more than ten (10) percent, we shall release securities of our choice at the Buyer's request. The items of the Supplies (Retained Goods) shall remain our property until all claims against the Purchaser to which we are entitled under the business relationship have been satisfied. This shall also apply if the purchase price has been paid for specific deliveries of Goods designated by the Buyer.
9. Place of Jurisdiction, Applicable Law, Miscellaneous
9.1 The exclusive place of jurisdiction for all disputes is the district court of Munich I.
9.2 The contractual relationship shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of law provisions and the application of the UN Convention on Contracts for the International Sale of Goods.
9.3 References to the validity of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these Terms and Conditions.
9.4 The German version of these Terms and Conditions prevails. The English version is a convenience translation only.